EPA Clarifies Release Reporting Requirements

On April 17, 2002 (67 Fed. Reg. 18899), the U.S. Environmental Protection Agency (EPA) clarified one of the most hotly debated questions in recent years, namely when routine and non-routine air emissions must be reported to state and local emergency response authorities and the National Response Center.

Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA) require the reporting of releases of listed substances where more than a threshold amount is released to the environment over 24 hours. The threshold quantities for reporting (referred to as Reportable Quantities or "RQs") are published in EPA's rules in Table 302.4 and Appendix A of Part 355. These RQs range from as small as a pound up to 5,000 pounds. Immediate reporting is required. Oregon sources must report releases to the Oregon Emergency Response System (which contacts local emergency responders) and the National Response Center. This reporting requirement does not just address releases to land or water, but releases to the air as well.

Not all releases that are above the RQs must be reported; some releases are exempted from the CERCLA and EPCRA reporting requirements. One such exemption is available for releases that are permitted or controlled under any of several environmental statutes. This exemption is referred to as the federally permitted release exemption. Defined by statute, this exemption specifically applies to any emissions into the air subject to a permit or control regulations under various portions of the Clean Air Act or the State Implementation Plan.

Substantial debate has existed for years as to what constitutes a federally permitted release in the context of the Clean Air Act. On December 21, 1999 (64 Fed. Reg. 71614), EPA's Office of Enforcement and Compliance Assurance and Office of Solid Waste and Emergency Response jointly issued interim guidance that was intended to assist industrial sources in interpreting when releases to air must be reported and when they are exempt from reporting. This interim guidance took several positions that industry generally considered to be unworkable and unduly draconian. For example, many of the reportable chemicals are considered volatile organic compounds (VOCs). Larger sources of VOCs would frequently have federally enforceable permit limits for VOCs that included, but did not specifically call out, the reportable substance. Most sources assumed that if they had a federally enforceable permit for the class of chemicals that included the reportable chemical, they were exempt from reporting their routine permitted emissions of that chemical. In the 1999 interim guidance, EPA suggested that actually every day's emissions were subject to reporting as emergency releases if the permit limit was not specific to the reportable chemical. EPA acknowledged that it may have overstepped reasonable bounds on several points contained in the 1999 interim guidance and by notice published on June 27, 2000 (65 Fed. Reg. 39615), EPA suspended the 1999 interim guidance.

Another question that long troubled sources is that the lists of reportable chemicals includes chemicals that are routinely emitted by most sources-often at levels exceeding the RQ. For example, the list includes nitrogen dioxide and nitric oxide and assigns them each an RQ of 10 pounds. These two chemicals are primary components of the family referred to oxides of nitrogen (NOx). NOx is one of the so-called criteria pollutants that is emitted whenever fossil fuels are burned and is heavily regulated for industrial sources as well as mobile sources (e.g., cars, trucks, boats and airplanes). While most large industrial sources with combustion activities would have an air permit that specifically regulates NOx, thus ensuring the exemption from reporting, many smaller sources typically do not. Under DEQ's rules, a source of less than 10 tons per year of NOx might not need an air permit. However, a small source could potentially exceed the 10 pounds of nitrogen dioxide emissions per day based upon routine operations. The 1999 interim guidance suggested that a source too small to have a permit, or a source with a permit that did not specifically name nitrogen dioxide (as opposed to NOx), would have to either routinely report under CERCLA or take steps to come within a different reporting exemption.

EPA's April 17, 2002 guidance attempts to clarify what constitutes a federally permitted release under the Clean Air Act and provides more reasonable answers to the questions surrounding this area of the law. EPA leads off the guidance by setting to rest one of the most troubling issues from the 1999 interim guidance, namely the question of how the existence of a federally enforceable particulate or VOC permit limit insulates a source from having to report a release. Specifically, EPA states that the release of a reportable constituent VOC or reportable constituent of particulate matter would typically qualify as a federally permitted release so long as the release was in compliance with a controlling permit limit or regulation. EPA recognized that limits on particulate or VOCs are intended to limit or eliminate releases of the reportable substances that make up those families of pollutants. While refusing to establish an absolute "bright line" test on this issue, EPA stated several criteria that strongly suggested that so long as an existing particulate or VOC limit had an effect on emissions of the reportable substance, the exemption criteria were met. A potential exception was identified for reportable substances emitted via an accident or malfunction that was not subject to a permit limit or control regulation.

EPA was much less circumspect in relation to emissions of nitric oxide and nitrogen dioxide. In relation to emissions of these pollutants, EPA did lay down a bright line. Facilities with NOx limits in their permits have a clear statement that their nitric oxide and nitrogen dioxide releases are federally permitted releases within the scope of the exemption.

Small sources also gained a clearer and more reasonable position as a result of the guidance. As noted above, the so-called "minor sources," or sources that are too small to require a permit or be subject to control requirements, had been left uncertain after the 1999 interim guidance. The 2002 guidance, however, clarifies that emissions below a permit or regulation threshold qualify as federally permitted releases. This means that the Oregon source that has NOx emissions below 10 tons per year does not normally have to be concerned that emissions from routine operations would trigger reporting requirements. However, a small source with unanticipated releases, such as releases from an accident or equipment malfunction, could find itself still subject to reporting obligations according to EPA.

The 2002 guidance attempts to lay down clear positions while avoiding bright line tests. This approach was carried over into almost every section of the document. In no place was this more true than the agency's discussion of emissions related to upset or malfunction conditions. EPA was concerned that sources not assume that just because they have a permit (or are too small to need a permit) that they would not have to report accidental emissions. However, while on the one hand cautioning all sources to carefully assess accidental emissions, EPA also notes that there are circumstances where even emissions from malfunctioning equipment may be an exempted federally permitted release. EPA encouraged reporting of all releases, but also noted that this issue is one that must be evaluated on a case specific basis. Therefore, sources with emissions attributable to malfunctions should carefully assess potential reporting obligations.

In contrast to its position generally against considering accidental emissions to be exempted federally permitted releases, EPA was clear that emissions from the proper startup and shutdown of equipment could be exempted. Many types of equipment have different levels and types of emissions during startup or shutdown, either because of the materials used, the dynamics of the process or the nature of the controls used. EPA clearly distinguished startup and shutdown emissions from accidental emissions because the former can and frequently are anticipated and quantifiable. EPA suggested that it may be much more straightforward to consider startup and shutdown emissions exempt as federally permitted releases, particularly if there are specific permit requirements that consider startups and shutdowns.

Overall the 2002 guidance is a good step forward for industry and the emergency release reporting system. Although the guidance retains ambiguity in relation to some aspects of the exemption and fails to answer some questions that have lingered for decades, it still provides a much clearer statement than previously existed. For Oregon sources, which have comprehensive permitting and exemption requirements in the State Implementation Plan, the guidance provides significant help. For the emergency responders, the guidance provides relief from the protective reports some sources made after the 1999 interim guidance. This guidance should help the emergency responders maintain focus on releases that pose significant threats to human health and the environment.

For Additional Information, Contact: Tom Wood, Stoel Rives LLP at 503-294-9396.

Originally published in May 1, 2002 edition of the Oregon Insider.